Bad Guys Make Good Law

Sane conservatives seem to have joined the backlash against the loathsome smear campaign recently unleashed on Justice Department lawyers who have done pro bono work representing Guantanamo detainees. They argue, rightly, that we shouldn’t denigrate “the American tradition of zealous representation of unpopular clients.” But I think there’s an important historical point here that deserves to be made more explicitly: The central, celebrated cases that have established the boundaries of our most cherished civil liberties often involve bad people who are, in fact, guilty of whatever crime they’re accused of.

Why? Well, because for many types of cases, few other people have an incentive to bear the burden of fighting all the way to the Supreme Court. If you can get acquitted on the merits, it’s not worth a protracted battle over the procedural fine points—and even if you’re looking for damages, the government will often prefer a settlement rather than taking a fight with a sympathetic defendant to the top.

Charles Katz really was involved in illegal gambling, but it’s his case that established a Fourth Amendment right to be free from warrantless wiretaps. Klansman Clarence Brandenburg really was advocating “revengeance” against Jews and African Americans (though in the latter case I’m paraphrasing)—but I owe him my right to express radical political views as long as I’m not directly inciting violence. Crucial Fourth Amendment cases protecting the sanctity of the home involved cocaine smuggling rings, marijuana growers, and thieves.

Many of them were, to put it mildly, unsympathetic characters whose “values” I would not want to be “shared” by high-ranking attorneys in the Justice Department. Fortunately, competent attorneys argued both sides of those cases, not because of their personal feelings about the defendants, but because the legal questions at the hearts of those cases had larger implications for the kind of country we’re going to live in. And our constitutional order works, when it does, because the Court is directed to the full range of core issues involved by thoughtful advocates who present them forcefully and clearly.

In some of the cases worked by attorneys now at DOJ, the Supreme Court agreed that the argument on the side of the Guantanamo detainees—many of whom, recall, turn out not to have been bad guys—was legally stronger. You can wish the cases had been decided differently. But if you believe at all in the rule of law, you can’t wish for either side to have been without competent representation. By extension, you can’t want it to be that the most talented legal thinkers fear being subject to character assassination if they defend ugly clients.

Update:Spencer points out that Marc Thiessen—to whom the inscrutable whims of Fred Hiatt now require us to pay attention—has been whining that we didn’t see an equivalent backlash against the attacks on the likes of John Yoo and David Addington. Because they’re all, you know, lawyers and… well, that’s about as far as he takes the analogy, but let’s not strain him right out of the gate.

Let’s review, though. The complaint against the current DOJ attorneys is that they took up one side of a vital legal dispute as part of our adversarial process, and made arguments sufficiently compelling that the Supreme Court often agreed. The complaint against John Yoo is that he acted rather like he was an advocate for one side—the “whatever the president wants to do” side—when his actual role was to objectively assess the requirements of the law in secret memos that would effectively determine the limits of policy. His arguments were so far from compelling that they were repudiated in unusually strong terms by his successors in the Bush administration, and career DOJ man David Margolis found it a “close call” whether they were so strained as to constitute professional misconduct. Advocates may sometimes risk trotting out a radical, out-of-the-mainstream legal argument in hopes that it will persuade five justices; Yoo took it upon himself to let such arguments determine policy, growing bolder rather than more humble in the absence of opposition or accountability.

I assume most people intuitively grasp the difference, because I don’t remember seeing anyone level the same kind of criticism against the government attorneys who argued the administration position in the detainee cases. Unlike Yoo and company, they were playing their proper roles in our system of law, not abusing them.

Finally, and perhaps most obviously, the attacks on the current DOJ appointees don’t just question their judgment or aver that they made bad arguments that were ultimately harmful to America. They imply that an attorney who works to defend a set of constitutional principles must be a terrorist sympathizer if those principles are, in the instance, being invoked by someone accused of involvement with terrorism. If someone has been arguing that John Yoo was Salafist mole doing his best to corrupt the American system of law, shame the United States, and murder our soldiers by swelling the ranks of Al Qaeda, then the analogy is more apt—but I missed it.

14 responses so far ↓

Yes, we don’t need kanagroo courts in America. I’ve always admired attorneys who defend controversial cases — it’s easy to uphold principles when it’s popular to do so, but upholding principles in the face of resistance and possible ostracism is very difficult.

I should point out, though, that Shafiq Rasul and Lakhdar Boumediene aren’t bad guys by any stretch, and that Salim Hamdan is so minor a player that whether he’s good or bad is essentially meaningless. The Kiyemba petitioners — who might well have been part of some good law-making — are innocent by every account. Al Bihani was a kitchen assistant. I could go on, but you get it: this isn’t even bad guys making good law.

. If someone has been arguing that John Yoo was Salafist mole doing his best to corrupt the American system of law, shame the United States, and murder our soldiers by swelling the ranks of Al Qaeda, then the analogy is more apt—but I missed it.

I have seen people (correctly, IMHO) connecting the dots from John Yoo to torture to Al Qaeda propaganda victories. It;s hard to deny: John Yoo is objectively pro-terrorist.

“If someone has been arguing that John Yoo was Salafist mole doing his best to corrupt the American system of law, shame the United States, and murder our soldiers by swelling the ranks of Al Qaeda, then” you have to admit that someone has an answer to a whole lot of nagging questions.

I am sure that Yoo is not, and has never been a Salafist mole. However, if he had been a really smart Salafist mole, I don’t see what he would have done differently.

At bottom, John Yoo is just one more guy in love with his own cleverness, to the detriment of anything else. “Hey, look at me! I’ve come up with a way to defend the indefensible.”

That’s sad although not uncommon. The smears of Cheney and Kristol are on a much deeper level of malevolence, and they cannot be referred to a board or committee for disbarment from humanity. But now we know what they are.

It is worth noting that since 2005, the executive branch has determined that approximately 6 out of every 7 persons ever imprisoned at Guantanamo were innocent.

It is also worth noting that if the federal bench had a sack, “the government attorneys who argued the administration position in the detainee cases” would have been held in contempt of court several times over.

[…] the American people during wartime” in anything but a meaningless technical sense (see Julian Sanchez on how bad guys make good law). And most egregiously, he asserts outright that these lawyers donate […]